2011 (1) TMI 1139

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..... ating proceedings against penalty and in the appeal he was exonerated and the case qua him was found to be false. The concluding paragraph of the order of the Commissioner of Appeal dated 25th January, 2008 reads as under : "The Adjudicating Authority in the impugned order has said, "Investment share of Shri Varyam Singh in the gold seized on 9-7-96 was to the tune of about Rs. 32 lacs while the rest of the money (approximately 70%) had been put by Shri Parmod Kumar. These facts have been substantiated by the statement- dated 9-7-96 of Sh. Varyam Singh tendered under Section 108 of Customs Act, 1962. Identity and telephone number 531228 of Shri Parmod Kumar in Dubai has been confirmed by his brother Shri Kanwar Bhan". From the perusal of t .....

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..... by the statements of various persons tendered under Section 108 of the Customs Act 1962 and also by documentary evidence i.e. copies of his passports. No other person involved in the case has mentioned anything about the Appellant. Thus the statement of Shri Varyam Singh who himself is involved in the case cannot be relied upon and accepted as evidence whereas the claim of the Appellant is supported by way of corroborative statements under Section 108 of the Customs Act, 1962 and documentary evidence and is acceptable as credible evidence in his favour. Moreover, the Appellant has not laid any claim on the impugned gold under seizure in this case. Keeping the above in view the finding of the Adjudicating Authority about the appellant are n .....

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..... herein this Court had observed that merely because the Tribunal exonerated a person, the criminal prosecution cannot be quashed. 3. The facts of the present case are akin to case in Vinod Kumar Jain (supra). Since the prosecution was initiated against the petitioner on the basis of available evidence, non-joining of the petitioner in investigation cannot be a ground to distinguish the case of the petitioner from that of Vinod Kumar Jain (supra). The entire evidence sought to be relied upon by the respondent department against the petitioner is the same that was before the Appellate Authority and since the Appellate Authority had considered the entire evidence and come to above conclusion, I consider that no useful purpose would be ser .....

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